Citation Nr: 21065680 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-07 113 DATE: October 27, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. The Veteran's service-connected disabilities alone do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from December 1984 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA); this case is in VA's legacy appeals system. In August 2019, the Board denied an increased rating greater than 30 percent for PTSD. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) vacating August 2019 denial and ordering the Board to provide better reasons and bases in support of any new decision. The JMPR also noted that there was evidence that the Veteran's service-connected disabilities may have prevented him from working during the appeal period and ordered the Board to consider the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2021, the Board remanded both claims to obtain any outstanding records identified by the Veteran, seek employment information in support of the inferred claim for a TDIU, and provide an updated VA examination for the Veteran's PTSD. This development has been completed and each issue is ripe for a decision. 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran asserts that his PTSD symptoms are more severe than is recognized and compensated by his current 30 percent rating. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. VA treatment records, the March 2016 and May 2021 VA examinations, and the Veteran's lay statements show that the Veteran's PTSD was at worst manifested by listed symptoms associated with a 30 percent rating, including, anxiety, chronic sleep impairment, and suspiciousness, as well as disturbance of motivation and mood, which is associated with a 50 percent rating, and inability to establish and maintain effective relationships, which is associated with a 70 percent rating. He also had symptoms that are not listed with a specific rating, such as persistent disturbing thoughts and dreams, avoidance of thoughts related to his stressor and any reminders of that stressor, feelings of detachment and estrangement, persistent exaggerated negative beliefs and inability to experience positive emotions, markedly diminished interest in significant activities, irritable behavior and angry outbursts, exaggerated startle response, and hypervigilance. The Board notes that these unlisted symptoms were listed as the criteria that supported the Veteran's underlying diagnosis of PTSD. In December 2015, the Veteran told his primary care doctor that he felt he was doing ok other than sleep problems and he was not interested in further mental health treatment. In March 2016, VA provided an examination to determine the severity of the Veteran's PTSD symptoms. The Veteran reported that he "g[o]t along famously" with his living siblings. He had had been separated from his previous wife of 20 years but remained married to ensure their disabled son could receive benefits. He was engaged to his long-term girlfriend and described the relationship as "really good." He had not worked since his discharge in 2008 but stated this was because he stayed home to care for his disabled son. He stated that he had friends but no longer hung out with them much because of decreased interest in social activities. He stated that his lack of interest, irritability, feelings of detachment, and avoidance of trauma reminders had led to some trouble in his current relationship and reduced his support network outside of his family. Objective psychological testing indicated the Veteran had syndromal symptoms of PTSD, moderately severe depressive symptoms, and no alcohol abuse concerns. On an adapted PSSI test used as an estimation of symptom endorsement, the Veteran endorsed symptoms including: recurrent and distressing recollections of the event, nightmares, intense psychological distress at exposure to cues, physiological reactivity at exposure to cues, avoidance of thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places, or people that arouse recollections of the trauma, diminished interest in free time activities, feelings of detachment or estrangement from others, restricted affect, sleep difficulties, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. On the Veteran's June 2016 Notice of Disagreement (NOD) he stated that he wakes up screaming from nightmares, lacks motivation, lacks the ability to form relationships "in [his] inner circle," and he distrusts everyone. In November 2017, the Veteran answered "no" to every question on the standard VA quick screens for depression and PTSD. He denied nightmares, intrusive thoughts, avoidance of thoughts or cues, hypervigilance or easy startling, feelings of detachment, feelings of hopelessness, and lack of interest or pleasure in doing things. In March 2018, the Veteran saw his primary care doctor. He denied hypervigilance, nightmares, and depression. His PTSD symptoms were listed as "stable" and he was informed of his VA mental health treatment options. There are no records of mental health treatment after this, and the Veteran denies seeking any mental health treatment since then. In May 2021, VA provided an examination to determine the severity of the Veteran's PTSD symptoms. The Veteran reported he was still separated from his wife of 24 years and still living with is girlfriend. He reported having trouble sleeping and intense, sometimes violent dreams. He reported being irritable and often snapping at people but denied doing anything more violent than sometimes slamming a door. He said he has worked on this and has been able to react more calmly and does not have angry outbursts in recent years. Asked to describe his mood, the Veteran denied depression or sadness, but felt misunderstood. He said his family described him as withdrawn and easily angered but he felt these were not accurate assessments. He admitted still being hypervigilant and easily startled. He endorsed anxiety and caution especially when interacting with other people. He described having few friends but being especially close with the ones he has and being close with some of his siblings. He described sometimes feeling lonely, even when with his supportive girlfriend, but he also described feeling happy at times. The examiner noted criteria for PTSD including recurrent distressing dreams, avoidance of distressing memories, thoughts, and feelings, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior with angry outbursts, hypervigilance, and sleep disturbance. They listed current symptoms of suspiciousness, chronic sleep impairment, and inability to establish and maintain effective relationships. The Veteran's affect was noted as "broad and appropriate to mood and context. The examiner noted that there were no recent treatment records to consult and that the Veteran's self-reported symptoms appeared mild. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. Recurrent intrusive thoughts and dreams, as well as avoidance of those thoughts and related cues, feelings of detachment and estrangement, persistent exaggerated negative beliefs and inability to experience positive emotions, exaggerated startle response, and hypervigilance, are similar to depressed mood, anxiety, and chronic sleep impairment, which are contemplated by the assigned 30 percent rating. Markedly diminished interest in significant activities and irritable behavior with angry outbursts are similar to disturbance of motivation and mood and impaired impulse control, which are contemplated by 50 and 70 percent ratings, respectively. The Veteran's statements regarding detachment and estrangement show that these feelings exist within the context of a family life where he maintains several close friendships and sibling relationship while also involved in a long-term romantic relationship that makes him happy. His irritability apparently persists, but he made clear that he had successfully worked to control any angry outbursts and had never acted violently during the period on appeal. Finally, the Board notes that the restricted affect observed on the March 2016 VA examination might be similar to flattened affect, which is contemplated by a 50 percent rating. However, this is not noted in any other record during the period on appeal and is explicitly contradicted by the May 2021 examination which noted a broad and appropriate affect. Based on this, the Board finds that the Veteran's unlisted symptoms are less severe and less frequent than the level of impairment contemplated by a 50 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. When not specifically addressing VA related to a claim for benefits, his medical records for the period on appeal include very limited mention of his PTSD. On several occasions he denied experiencing any major symptoms except for sleep disturbance and he consistently declined available treatment. Even without active treatment, he was able to first care for his disabled son and then later find a job that he has maintained for at least two years without any noted interference by his PTSD symptoms. He was also, as noted above, able to maintain multiple family relationships, friendships, and a romantic relationship, all of which he described with consistently positive language. While VA examiners endorsed symptoms contemplated by a 50 percent rating or higherdisturbance of motivation and mood and inability to establish and maintain effective relationshipsthe evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. The Veteran certainly had periods of difficulty with motivation and mood, but at the same time was able to navigate multiple emotionally taxing situations such as caring for his disabled son while separated from his wife and living with his girlfriend and find and maintain a new job after years out of the workforce. This demonstrates that the Veteran is able to motivate himself and maintain important relationships. This does not mean that the Veteran does not experience hardship related to these symptoms, but it demonstrates that these symptoms are not the defining characteristics of his PTSD and do not meet the level of severity required for a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) While the Veteran has not claimed that his service-connected disabilities prevented him from working during the period on appeal, a claim for TDIU was inferred from the record based on his statement that he had not worked since his discharge from service in December 2008. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Entitlement to TDIU requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's combined disability rating has been 70 percent since the day after his separation from service and increased to 90 percent effective January 27, 2016. Since January 1, 2009, the Veteran has been service-connected for PTSD, rated 30 percent, and right wrist strain, left wrist strain, cervical strain, thoracolumbar strain, tinnitus, status post cholecystectomy, a scar over the right eye, and right carpal tunnel syndrome, each rated 10 percent, and for a right fourth finger scar and benign neck neoplasm, both rated 0 percent. Effective January 27, 2016, he was granted service connection for sleep apnea, rated 50 percent. He has therefore met the schedular requirement for a TDIU for the entire period on appeal. In March 2021, VA sent a letter to the Veteran explaining that he may qualify for a TDIU if his service-connected disabilities prevented him from working and asked him to complete and return VA Forms 21-8940 and 21-4192 to provide VA with information in support of his claim. The Veteran did not respond to this request. VA examinations from March 2016 and January 2020 note the following functional impacts of the Veteran's service-connected disabilities: Sleep apnea causes persistent daytime hypersomnolence but no other direct functional impact; PTSD causes trouble with motivation and interacting with other people; bilateral wrist strain and carpal tunnel syndrome cause pain and numbness in his hands and wrists, which makes performing tasks with his hands difficult; residuals of cholecystectomy cause bloating, cramps, and diarrhea, which require him to work near an available bathroom; and cervical and thoracolumbar spine strain cause some tenderness but no noted impact on employability. Tinnitus, scars, and residuals of benign neck neoplasm have no noted functional impact. The Veteran's service-connected disabilities undoubtedly cause him considerable difficulty in following a gainful occupation. However, this is recognized and compensated by the Veteran's combined disability rating of 70 and then 90 percent. The Veteran told a VA examiner in March 2016 that he had not been working since he separated from service because he had to care for his disabled son, and he had not looked for outside employment. In May 2021, he gave another VA examiner the same explanation for his lack of employment. He also explained that when he felt he needed outside work to keep more active, he secured a job in a Lowe's receiving department and had been working there for approximately two years. The Veteran did not indicate that this position was in any way protected, marginal, or that he was given any accommodation for his service-connected disabilities. When VA contacted him to obtain information in support of his TDIU claim, the Veteran did not respond. Given that the Veteran's consistent explanation of his previous lack of employment is entirely unrelated to his service-connected disabilities, and that he has secured apparently gainful employment and maintained it for two years, the Board finds that his service-connected disabilities have not and do not prevent him from securing or following a substantially gainful occupation. A TDIU is therefore not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.